In his Congressional statement, Prince insisted that “based on everything we currently know, the Blackwater team acted appropriately while operating in a very complex war zone.” He alleged that “Blackwater and its people have been the subject of negative and baseless allegations reported as truth” and that “many public reports have wrongly pronounced Blackwater’s guilt for the death of varying numbers of civilians.” Prince concluded there had been a “rush to judgment based on inaccurate information.”
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There was one force that did rush to the scene to obtain information. And, unlike the Iraqi government, the media, or witnesses, this investigator could not be easily dismissed or discredited: the U.S. military, which arrived on the scene the day of the incident at 12:39 p.m., moments after the shooting ended.
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Amid the carnage of Nisour Square, soldiers from the Third Battalion, 82nd Field Artillery Regiment of the Second Brigade, First Cavalry Division, interviewed witnesses, conducted an on-site investigation, and held talks with Iraqi police. The forces under the command of Lieut. Col. Mike Tarsa contradicted almost every one of Prince’s and Slough’s assertions. They bluntly concluded there was “no enemy activity involved,” determined that all of the killings were unjustified and labeled the shootings a “criminal event.” Tarsa’s investigation found that many Iraqis were shot as they attempted to flee, saying “it had every indication of an excessive shooting.” Combing the scene, Tarsa’s soldiers found no bullets from AK-47 assault rifles or BKC machine guns used by Iraqi military and police that Prince had alleged were fired. But they did find an abundance of evidence of ammunition from U.S.-manufactured weapons, including M4 rifle 5.56-millimeter brass casings, M240B machine gun 7.62-millimeter casings, and M203 40-millimeter grenade-launcher casings. Tarsa’s soldiers also said they were “surprised at the caliber of weapon being used.”
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Blackwater said at the time, in early October, it would not comment until the FBI had concluded its investigation, but Prince did attempt to cast aspersions on Tarsa’s conclusions. “It’s from one colonel,” Prince said. “And I don’t know what his experience is in doing crime scene investigations.”
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In November, the first glimpse into the conclusions of the FBI probe emerged in the
New York Times
, which reported that the federal agents had “found that at least 14 of the shootings were unjustified and violated deadly-force rules in effect for security contractors in Iraq.”
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The report added, “Investigators found no evidence to support assertions by Blackwater employees that they were fired upon by Iraqi civilians,” quoting one official as saying, “I wouldn’t call it a massacre, but to say it was unwarranted is an understatement.” A military investigator “said the F.B.I. was being generous to Blackwater in characterizing any of the killings as justifiable.” The military was clearly outraged at the shootings, and some officials believed it would have a blowback effect on U.S. soldiers. “It was absolutely tragic,” Maj. Gen. Joseph Fil, the Army’s top commander for Baghdad, told the
Washington Post
. “In the aftermath of these, everybody looks and says, ‘It’s the Americans.’ And that’s us. It’s horrible timing. It’s yet another challenge, another setback.”
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During this period, a chorus of voices rose against Blackwater from within the ranks of the military. The pay disparity between private contractors and official soldiers was hurting morale, and senior commanders complained that the misconduct of Blackwater and other private forces was damaging the U.S. “counterinsurgency” campaign. This critique was sounded from the highest levels of the military. In an unusually blunt comment a month after Nisour Square, Defense Secretary Robert Gates said the mission of many private security contractors was “at cross-purposes to our larger mission in Iraq,” adding that “in the objective of completing the mission of delivering a principal safely to a destination, just based on everything I’ve read and what our own team has reported, there have been instances where, to put it mildly, the Iraqis have been offended and not treated properly.”
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What was particularly troubling (aside from the loss of Iraqi civilian life) was that even if Blackwater were not so politically connected to the White House and even if there were a truly independent U.S. Justice Department and even if immunity had not been offered and even if there had been an aggressive investigation, it would not have been enough. When Secretary of State Condoleezza Rice dispatched a team to Baghdad, led by veteran diplomat Patrick Kennedy, to review the department’s private security force in the aftermath of Nisour Square, the team returned with the conclusion that it “is unaware of any basis for holding non-Department of Defense contractors [like Blackwater] accountable under US law.”
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While a fierce debate over the use of private forces raged in the United States, legal scholars debated what—if any—court could hold Blackwater and other mercenary forces accountable for their crimes in Iraq. Not only had the State Department’s immunity offerings early on in the Nisour Square investigation potentially compromised the chance of prosecution, as the Justice Department acknowledged in early 2008, but the bottom line was that Blackwater operated in a legal gray zone, seemingly outside the scope of both U.S. civilian and military law and immune from Iraqi law.
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While a federal grand jury was convened in late 2007 to investigate, serious questions about the potential for a successful prosecution abounded. Many legal analysts concluded that U.S. civilian law on contractors abroad covered only contractors working for the military—Blackwater worked for the State Department.
While the House voted shortly after Nisour Square to expand the law to apply to all contractors, it could not be applied retroactively and still had to clear the Senate. The Bush administration “strongly oppose[d]” the legislation, saying in a statement released the day after Prince appeared before Waxman’s committee that the law would have “intolerable consequences for crucial and necessary national security activities and operations.”
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A court-martial seemed unlikely and could possibly meet resistance from civil liberties advocates who would view it as a step toward applying military law to civilians (though some would argue that such a label should not apply to armed mercenaries). Washington was clear it would not hand over U.S. personnel to Iraqi courts, and the Bremer-era ban on Iraq prosecuting contractors remained in place. Some analysts believed the Justice Department would attempt to prosecute at least one Blackwater operative for Nisour Square—indeed, Slough was identified as being “at the center of the investigation”—as a token symbol of accountability. But because of the way the law governing contractors was phrased at the time of the killings, the possibility of failure was significant. Some legal experts argued that the shooters could be prosecuted for war crimes under U.S. law, but that would require not only political will from the Bush administration but also a de facto indictment of the whole system of privatized war, which seemed highly unlikely to happen. The possibility that private soldiers could face prosecution, particularly for war crimes, would also have presented a major disincentive for mercenary companies to work for the Bush administration. “There clearly is jurisdiction and a basis to act against them under the War Crimes Act,” said military law expert Scott Horton. “But the Bush administration doesn’t want to go there, doesn’t want to touch that. I think they’ve made that point clear.”
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The State Department’s acting Assistant Secretary of State for the Bureau of Diplomatic Security, Gregory Starr, admitted, “It might be the case that Blackwater can’t be held accountable” for the killings.
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Some of the Iraqi victims’ families and Nisour Square survivors did not want to wait for Congress and the Bush administration to resolve these questions and didn’t have faith justice would be done. So they took the only action they could—they sued Blackwater, not in Iraq but in Washington, D.C.
“War Crimes” and “Extra-judicial Killing”
Days after the shootings, some of the Iraqi survivors and victims’ families contacted local Iraqi human rights lawyers who worked with U.S. law firms that had filed cases against other Iraq War contractors for alleged abuses. Attorneys from the Center for Constitutional Rights and two other firms, led by attorney Susan Burke of Burke O’Neil, began interviewing survivors, witnesses, and victims’ families. CCR was no stranger to cases involving contractors’ crimes in Iraq, having filed a major lawsuit against some of the private forces who were among the alleged perpetrators of the torture and abuse at Abu Ghraib Prison. Burke spearheaded that case as well. “[The Nisour Square families] came to us because they know of our work representing the torture victims at Abu Ghraib, and they asked us whether it would be possible to try to get some form of justice, some form of accountability, against this rogue corporation,” Burke recalled.
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On October 11, 2007, Blackwater was sued by Iraqi civilians. Burke and CCR filed the groundbreaking lawsuit in federal court in Washington, D.C., on behalf of five of the Iraqis killed at Nisour Square and two of the survivors wounded in the attack. The suit alleged that Blackwater’s actions amounted to “extra-judicial killing” and “war crimes.”
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It was filed in part under the Alien Tort Statute, which allows for litigation in U.S. courts for violations of fundamental human rights committed overseas.
“Blackwater created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company’s financial interests at the expense of innocent human life,” the suit charged. “This action seeks punitive damages in an amount sufficient to punish Erik Prince and his Blackwater companies for their repeated callous killing of innocents.” The suit was believed to be the first U.S. case brought by Iraqi civilians against a private “security” company.
It alleged that “Blackwater heavily markets the fact that it has never had any American official under its protection killed in Iraq” and “views its willingness to kill innocent people as a strategic advantage setting Blackwater apart and above other security companies.” Blackwater, the suit alleged, “was and is willing to kill innocent bystanders in order to preserve that ‘no death’ statistic for marketing purposes. Blackwater benefits financially from its willingness to kill innocent bystanders.”
Among the plaintiffs were the estates of the first victims, Ahmed Hathem al-Rubaie and his mother, Mahasin. “She was shot to death by Blackwater shooters as she cradled her dead son’s body, calling for help,” the suit alleged. The three other Iraqis named in the lawsuit who were killed on September 16—Oday Ismail Ibraheem, Himoud Saed Atban, and Usama Fadhil Abbass—had fourteen children among them, one an infant, according to Burke.
“The rule of law in every civilized nation in the world is that there is no legitimate reason to indiscriminately kill innocent bystanders,” Ratner said. “We believe that the acts of Blackwater at Nisour Square were deliberate, willful, intentional, wanton, malicious, and oppressive, and constitute war crimes. Blackwater is harming the United States by its repeated and consistent failure to act in accord with the law of war, the laws of the United States, and international law.”
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Among the allegations in the suit:
• Despite Blackwater’s claim that it is a defensive force, its “mobile armed forces” are “consistently referred to by Blackwater management and employees as ‘shooters.’”
• Blackwater should not have been at Nisour Square and defied orders not to go there. At the time of the shootings, “Blackwater shooters were not protecting any State Department official. The Blackwater shooters had already dropped off the official under its protection prior to arriving at Nisour Square.” The “Tactical Operations Center” (manned by both Blackwater and State Department personnel) “expressly directed the Blackwater shooters to stay with the official and refrain from leaving the secure area. Blackwater personnel were “obliged” to follow the directive and did not.
• “Blackwater routinely sends heavily-armed ‘shooters’ into the streets of Baghdad with the knowledge that some of those ‘shooters’ are chemically influenced by steroids and other judgment-altering substances. Reasonable discovery will establish that Blackwater knew that 25 percent or more of its ‘shooters’ were ingesting steroids or other judgment-altering substances, yet failed to take effective steps to stop the drug use. Reasonable discovery will establish that Blackwater did not conduct any drug-testing of its ‘shooters’ before sending them equipped with heavy weapons into the streets of Baghdad.” (Blackwater rejected the steroid allegations, saying its forces face drug tests during their application process and on a quarterly basis while working for the company. A spokesperson said, “Blackwater has very strict policies concerning drug use, and if anyone were known to be using illegal drugs, they would be fired immediately.”)
• Blackwater does not have “a valid contract” with the United States: “The Anti-Pinkerton Act . . . prohibits the United States from doing business with ‘[a]n individual employed by the Pinkerton Detective Agency, or similar organization.’ The legislative history of the Act makes it clear that a ‘similar organization’ means any mercenary or quasi-mercenary organization. Blackwater constitutes such a ‘similar organization’ and therefore lacks any valid contractual relationships with the United States.” (Ironically, a few months after the suit was filed, Blackwater vice president Martin Strong actually compared Blackwater’s work directly to Pinkerton’s. “Well, I can remember a time when Abraham Lincoln tried to get to his inaugural and he couldn’t find anybody to protect him except for the Pinkertons, who were a private-sector solution to protecting the new president of the United States,” he said. “This has been going on for a long, long time.”
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